| Norfleet v Deme Enter., Inc. |
| 2009 NY Slip Op 00238 [58 AD3d 499] |
| January 20, 2009 |
| Appellate Division, First Department |
| Gary Norfleet, Respondent, v Deme Enterprise, Inc., et al.,Appellants. |
—[*1] Law Office of Michael T. Ridge, Port Washington (Michelle S. Russo of counsel), forrespondent.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about January25, 2008, which denied defendants' motion for summary judgment dismissing the complaint,affirmed, without costs.
We reject defendants' argument that plaintiff's chiropractor failed to satisfactorily addresstheir radiologist's conclusions relating to his opinion that plaintiff's condition is due topreexisting, degenerative changes, where plaintiff's chiropractor specifically opined thatplaintiff's injuries may contribute to "future degenerative processes" and that the traumasustained in the accident "was the competent producing factor of the . . . injuries"(see Hammett v Diaz-Frias, 49AD3d 285 [2008]), and where defendants' radiologist's conclusions were couched inequivocal terms such as "most likely degenerative" and "may be degenerative." We haveconsidered defendants' other arguments and find them unavailing. Concur—Lippman, P.J.,Buckley, Sweeny and Renwick, JJ.
Andrias, J., dissents in a memorandum as follows: Plaintiff's chiropractor failed to address oreven mention the findings of defendants' radiologist that plaintiff's alleged injuries weredegenerative in nature. Thus, his opinion was speculative, requiring dismissal of the complainton the ground of lack of causation. Accordingly, I would reverse and grant defendants' motionfor summary judgment dismissing the complaint.
Contrary to the majority's characterization, defendants' radiologist's use of the words "mostlikely" and "may" in explaining his opinion that plaintiff's cervical spine pathology, as shown onan MRI taken five weeks after the accident, was degenerative in etiology, does not render hisopinion equivocal or speculative, and his report served to put causation in issue (see Pommells v Perez, 4 NY3d566, 579 [2005]). The radiologist's conclusions, characterized by the motion court as"suggestive rather than dispositive," were accompanied by his observation of[*2]"[d]egenerative disc dehydration . . . at each levelfrom C2-3 through C6-7." He stated that some of these protrusions, namely, the "broad basedmidline posterior" ones at C4-5, C3-4 and C5-6, "are associated with degenerative discdehydration at these levels" and thus are "most likely" degenerative in etiology. Moreover, the"protrusion/herniation" at C6-7, while "more asymmetric" and thus "of more indeterminate ageand etiology" "may be degenerative in nature as well." But, in any event, the radiologistobserved, "there is no associated spinal cord compression or significant compromise of theneural foramen at C6-7 and, as such, the finding would not be expected to result in a neurologicdeficit clinically." Furthermore, a "straightening of the cervical lordosis" that is "nonspecific," ashere, "frequently accompanies degenerative disc disease."
On the other hand, while plaintiff's chiropractor quantified plaintiff's limitations of motionand concluded that they were significant, he failed to address, let alone refute, defendants'evidence of a preexisting degenerative condition. His statement that any injury to the disc andannulus "may contribute to future degenerative processes" and eventually "accelerate thedegenerative process" is insufficient to explain why he ruled out or failed to address theforegoing findings of defendants' radiologist that plaintiff's alleged injuries were degenerative innature, and rendered his opinion that they were caused by the accident speculative (see Gorden v Tibulcio, 50 AD3d460, 464 [2008]). Thus, there is no objective basis for concluding that plaintiff's injuries areattributable to the subject accident rather than to the degenerative condition (see Jimenez v Rojas, 26 AD3d256, 257 [2006]) and the complaint should have been dismissed on the ground of lack ofcausation (see Pommells v Perez, 4 NY3d at 579-580; DeLeon v Ross, 44 AD3d 545,545 [2007]).